Article 5 Flashcards
(15 cards)
1
Q
Introduce
Article 5(1) and basics of Article 5
Magna Carta, Habeus Corpus
Apart of A5
A
Article 5(1) - Everyone has rights to liberty and security of the person.
- Rights originate from Magna Carta and Habeus Corpus
- Limited right, to prevent any arbitrary deprivation of liberty.
2
Q
Describe
Deprivation of Liberty
Cheshire West, Guzzardi v Italy, Austin
Apart of A5
A
- No deprivation if carried out in good faith, for a reasonable length and it was necessary to deprive that person.
Cheshire West - Deprivation, is when imprisoned without court order, are under continuous supervision, or can't leave. Guzzardi v Italy - Duration, effects and manner of implementation will be covered. Austin - A person can be still deprived of liberty, even if depature is not prevented by a locked door.
3
Q
Describe
The Rights you have when deprived of your liberty
A5(3), A5(4), A5(5)
Apart of A5
A
Article 5(3) - Brought promptly before a judge, released on bail if justified, and tried within a reasonable time. Article 5(4) - Can challenge in court and right to have detention reviewed, Article 5(5) - Right to compensation if unlawfully deprived
4
Q
Describe
Lawful Restrictions of liberty.
A5(1)(A-F), Winterwerp v The Netherlands, Saadi v UK
Apart of A5
A
- Artcle 5(1)(a-f) states when the state can restrict your liberty.
(a) - Detention after conviction - regularly reviewed detention, not indefinetly (b) - Detention for non-compliance with court order - Breach of bail (c) - Detention after arrest - Followed PACE procedures. (d) - Detention of minor for education - Forced U16 to attend school (e) - Detention for purpose of unsound or disease of mind. Winterwerp v The Netherlands - If condition is persistent, they are of unsound mind, lawful detention. (f) - Detention to extradite or deport Saadi v UK - Court should consider if necessary and proportionate
5
Q
Describe
Terrorism Prevention and Investigatory Measures
SS for Home Department v JJ
Apart of A5 not in act
A
- Terrorist supsects subject to these measures, controlling their residence, activities and movement. Can put any of the following restrictions.
- Max 2 year period (unless extended)
- Tagging, Overnight Residence
- Social Restriction, No foreign travel.
SS for Home Department v JJ - If too much restrictions on offender, can be unlawful
6
Q
Describe
Kettling
Austin
Apart of A5 not in act
A
- Police detain citizens to control crowd to prevent violence.
Austin - Kettling if implemented proportionally, necessary to prevent violence, and wasn't enforced for longer than necessary, then lawful.
7
Q
Describe
Stop and Search (Not s.60)
R(Gillan) v Commisioner of Police, S.1 PACE 1984, S.2, S.3, COP A
Apart of A5 not in act
A
- Can base stop and search over appearance like gang symbols.
R(Gillan) v Commissioner of Police - Detention whilst being searched lawful, won't deprive if strict rules are followed. S(1) Police and Criminal Evidence Act 1984 - Police can S and S in public place, with reasonable suspicion, from intel or public information, that the person is carrying something prohibited or stolen. Code of Practice A PACE 1984 - Only can remove, coat, jacket and gloves on street, officer can use reasonable force. S.2 PACE - Officer must identify themselves, must state why searching you. S.3 PACE - Must keep a written record of this S and S.
8
Q
Describe
S.60 Stop and Search
S.60 Crim Justice and POA 1994, R(Roberts) v Comms of the Police
Apart of A5 not in Act
A
S.60, Criminal Justice and Public Order Act 1984 - Senior officer can authorise, if anticipate violence, or carried offensive weapon, in place for 48 hours, can stop and search without reasonable suspicion. R (Roberts) v Commissioner of The Police - If correct rules and procedure followed, in accordance with law and proportional, then no deprivation.
9
Q
Describe
Arrest
COP G+ S.24 PACE, S.28 PACE. S.34 CJAP1994, Christie v Leachinsky,
Shimovolos v Russia, Apart of A5 NOT IN ACT
A
- Officer has to tell person why they were arrested and keep a record.
Code of Practice G, S.24 Police and Criminal Evidence Act 1984 - Police can arrest without warrant, before, during or after a crime committed, if reasonable grounds to believe offender did crime.. Christie v Leachinsky - If charge is not known to arrested person then breach. S.28 PACE 1984 - Officer must give grounds for arrest in clear, unambigous language, and take arrested person to station as soon as possible. S.34 Criminal justice and Procedure Act 1994 - Read person rights, and caution that it is required. Shimovolos v Russia - Police can't use power to fish for information
10
Q
Describe
Detention after Arrest - Introduce, Time Limits, Custody Officer
PACE, Code of Practice C, Protection of Freedom Act 2012
Don’t write all only what is relevant, apart of A5 not in ACT
A
PACE, Code of Practice C - Police can lawfully detain someone when investigating if follow rules.
- 24 HOURS / Summary can’t be extended / Triable can be up to 36 with senior permission / Indictable up to 96 with Magistrate
~~~
Protection of Freedom Act 2012 - Up to 14 days, by district judge for terrorism investigaton
~~~
- Custody officer monitors detainee, do wellbeing checks, up tp 6 hour after start, 9 hour in intervals, keep a record of suspect belonging, check if arrest rules followed.
11
Q
Describe
Detention after Arrest - Rights when detained
Don’t write all, only that that is relevant. Apart of A5, not in Act
A
- Clean ventilated cell, 8 hour sleep, with meals and 2 hour interviews with breaks.
- Right to consult legal advice or refuse, to refuse to anwser, which can be used against you, guardian if under 17.
- Right to inform someone, a phone call, exclude unfair evidence through torture.
- Can delay legal advice and phone call in indictable, up to 36 hours, if could mess with invesitgation.
12
Q
Evaluate
Limited Right
- Limited so can be restricted by state, necessary.
- Stops state from unless in? What can V do if unlawfully deprived?
- When can state lawfully deprive? What does this protect? What is a downside to these a-f?
Apart of A5 Evaluation
A
- Unlawfully detaining an individual, without an exception present, as universal right, can challenge abuse of power.
- Limited circumstances under (1)(a-f), such as a breach of bail, protects wider society, could be too easy to take liberty away.
13
Q
Evaluate
Abuse of Power
- Kettling can lead to an abuse of power
- What is there no of in Kettling for police? Case of Mengesha?, what does A5(5) let you do that most don’t know?
- How is kettling good, case of Austin and what court determined kettling was?
Apart of A5 Evaluation
A
- Guidance, so such as in Mengesha, police can use it to fish for information, right to challenge this, but most don’t know their rights.
- Good as prevents a threat of violence to public, protects wider society, courts state it is necessary for safety of public.
14
Q
Evaluate
Protection of I.Rights
- Stop and search strict rules protect individual right.
- What does Code Of Practice A ensure? When can police stop and use power?
- How is S.60 abused? When should only be used? What in crime leads this to being necessary 20%?
Apart of Evaluation
A
- Ensure right not breached by abuse of power, police only stop you in certain circumstances indiscriminatory.
- Police search anyone up to 48 hour, only unless violence anticipated, no reasonable suspicion needed, though necessary due to 20% uptick in crime from Mar 23 to 24, more violent world so necessary.
15
Q
Evaluate
Protects Rights of Society
- TPIM Detention protects rights of society.
- When can detain? Reduced? What do restrictions have to be? What if they arent? SSHD v JJ?
- What are foreign suspects no longer held time for? How is this right? Whose right is upheld? How is this good for both sides?
Apart of Evaluation
A
- Times of national security, to reduce risk and keep people safe, with reasonable restrictions, if too much is unlawful.
- Indefinitely, right as they aren’t guilty yet, upholds public right over individual, protects people first and offender still treated fairly.
